and that's key because they want to know whether there are people in the united states or whether there are people abroad who may have been facilitating for these two individuals. now, he did sustain injuries. he has some sort of a wound to his leg. we believe it's a gunshot wound of some sort where he sustained significant blood loss while he was on the run. remember, he and his brother had gotten out into that car shootout over in watertown. he also has a wound to the back of his neck, but it's unclear specifically what caused that particular wound. he was in the boat and when he was being flushed out by the

snipers and the tactical teams, they did use flash bang grenades. so there's a theory that he sustained some pretty serious damage to his hearing. so that's another sort of hindrance for investigators to get the kind of questions they want answered. but he's heavily sedated. the doctors are in charge. the investigators are right outside his door. they're on standby. clearly when he does wake up they want to be the ones he's looking at so he can answer any kinds of questions. but very limited movement right now as doctors try to heal him but also get the information they need in the event there's somebody else out there. ashleigh. >> deb, to be a fly on the wall to hear what some of those questions are and who some of those questioners are as well. we're going to get to that a little later in the program. deborah feyerick live for us on that story. thank you. i want to also go to that second issue. and that is of the widow left behind. that is katherine russell, known

as cay i katie russell. my colleague chris lawrence has had a chance to speak with her attorney in rhode island. chris, i understand it's not the easiest conversation to have given the circumstance this widow is in, but at least you're able to glean some information about her involvement right now in this investigation. what do you know? >> that's right, ashleigh. basically the federal investigators want to know what she knew, if anything, about what was happening before those attacks against the boston marathon. i spoke with her attorney this morning and he basically said she didn't know what was happening with her husband until she saw it on the news and she had no knowledge of any of this at any time. he also went onto say that it's been incredibly hard on the family, that she's distraught and crying. let me read you part of a statement that basically from what he told us he said she understands the need for doing it, talking about federal agents looking to speak with her. this is the way the government

looks at it and she understands this. it's a threat to national security. and she gets that. and she's a really good person, very sympathetic to that. katie's just trying to bring up her daughter. she's obviously referring to the young toddler that she had with tamerlan tsarnaev. again, he said basically she feels very strongly for the victims of that boston marathon bombing and she's also dealing with the fact that she lost her husband and the father of her child as well, ashleigh. >> but, chris, it's so critical at this point. do we know if she's actually helping them one-on-one? or did she circle the wagons, quickly get an attorney and it's the attorney now who's running the show? >> basically here's what we know. we know that federal agents have been to the apartment that she shared with her husband and daughter. and federal agents have also been here to her parents home in rhode island where she has been staying with her parents.

we know that federal agents have contacted her, trying to find out what she knew. she has been speaking with them but through her attorney. basically, her mom and dad hired an attorney to work with the family to sort of facilitate their contact with the federal agents. and that's what they're doing at this point. >> all right. chris lawrence, excellent reporting. stay on it and let us know if you find out anything more about her and what she may or may not say to investigators. i just want to get to some breaking news right now. this is coming from the white house press briefing. apparently press secretary jay carney has now let us know that this bombing suspect, dzhokhar tsarnaev is not -- i repeat, is not going to be treated as an enemy combatant. there have been a lot of questions about just what kind of prosecution this young man is going to be facing whether it would be in civilian justice or perhaps would he be one of those considered for prosecution in a military tribunal, perhaps even at guantanamo bay, but there you

have it straight from the white house he will not be treated as an enemy combatant. the court and justice itself for boston and for the nation may well depend on exactly what those interactions are right now going on between dzhokhar tsarnaev and the high value detainee interrogation group. again, that's a very frightening sounding group, but the high value detainee interrogation group is comprised of a number of officials of the cia, the fbi and others. those very well may be the people who are at that hospital bedside periodically asking whatever questions they can get out of this suspect. i want to get into some of that right now with three of the smartest in the business. the incredibly smart attorney cnn senior legal analyst jeffrey toobin as well as litigator and author and harvard law professor alan dirs witsz. with a wounded, sedated and restrained and unmirandized

terror suspect. professor, that has to raise just inord nant number of questions. what are your thoughts? >> as soon as a lawyer is appointed the law might begin to challenge that. you may say what's the harm, they have a videotape of him putting the bomb down, they have a statement he made or his co-defendant, his brother, made to the people who hijacked. but it may make a lot of difference. because in order to get the death penalty, they have to prove that he comes within the federal terrorism statute. and that requires very specific kinds of intentions behind the bombing. and if they get the evidence of those intentions during this interrogation even if it's by a nod or something handwritten, the federal court in boston which comprised of a lot of very good judges who really, really operate by the letter of the law may well exclude those statements made without a miranda warning or made while he's not really competent

between times when he's sedated and not sedated. so they may be risking their death penalty, but they may be doing it for a good reason. they may need realtime intelligence, but i don't think that the public safety exception will stand up for allowing them not to have given the miranda warnings. >> fascinating. in fact, i have a lot of questions about that i'm going to get to. and actually i want to bring in another colleague as well right now. steve razor is a former military judge advocate general and knows a thing or two about this military issue. typically, steve, we hear about a 48-hour window and this is a very new area of justice. this has only been in sort of parlay for the last couple of years. we are far outside of that 48 hours by today. but can it be extended in the case of public safety? and exactly when can you establish that a public safety exemption has expired or is no longer of concern? how long can you keep him from getting miranda? >> well, there's no hard and

fast rule on that. and that's exactly the issue as you had outlined it is that they're going to have to prove that this exception has to extend as far as it has extended. i think part of the way that they could look at this and part of the argument that they can make is the enormity of the situation. the enormity of the risk. i think the gravity of the risk is going to help them to extend that exception. because here we're dealing with deaths of four people and dozens of people injured. so based upon that i think they may have a good argument. >> and i wonder just, you know, really i don't want to put the cart before the horse, but the number of appellate issues that could be, you know, germinating right now even as we speak and as they speak. jeff toobin, i want to bring you in just quickly on something that professor dershowitz just brought up and foregoing possibility of death investigation by continuing the investigation right now while there is no miranda, isn't it just a simple if he does not

invoke on his own a desire for an attorney and offers up information effectively even offers up some kind of a confession, can't that be used? >> well, not if -- again, this depends on the scope of this public safety exception and whether the courts agree to it. there have been -- the supreme court has a case from 1984 which says that under certain narrow circumstances where there is in effect a ticking time bomb, it's okay to ask questions without miranda. but the limits of that are -- have never been precisely defined. the obama administration said 48 hours, but that's simply their interpretation. now, this hole miranda issue though i think we can overstate its importance. all miranda does is restrict whether those statements can be

used against tsarnaev himself in a court case. they can still use all this other evidence that they have against him. so they may simply decide we're not going to use these statements at all. we're going to prove our case with other evidence. >> true, jeff. >> but then it doesn't matter. >> i'm curious about the voluntary statements. if he offers something up, can't that also be used as opposed to bringing it out in interrogation? >> yes, although it would be difficult to say that an intubated sedated person suddenly decided to write out answers to questions. i think it's quite clear he's being questioned here. the real issue is does the government want to use those answers in court or do they simply want to use it to continue their investigation, which they certainly have every right to do. >> but there's one other issue that relates -- >> go ahead, professor. >> in addition to miranda, remember miranda only excludes the actual statement itself. but if the statements were

obtained involuntarily as a result of the sedation, not only can't they use the statements in court, but they can't use any of the fruits of those poison trees. so if they get any leads, they can't use those against this defendant. now, they can use it against others. they can use it for general intelligence gathering. so i agree with jeffrey that they may be making a calculated decision to risk any statements of confessions or intention in order to preserve the greater good of getting realtime intelligence information. >> and public safety which cannot be discounted at this time, that fruit of the poisonous tree so critical in this investigation. alan and jeffrey, standby if you will. we're going to delve a lot deeper into the details in the hour ahead. and also within the past hour a funeral mass concluded for one of the three people who was killed in last week's explosions. there were a lot of mourners packing into st. joseph's church in the boston suburb of medford.

they were there to remember krystle campbell. she was a restaurant manager, she was just 29 years old. the boston cardinal sean o'malley presided over the services. and tonight, a memorial service is going to be held for lingzi lu, a graduate student in math and statistics at boston university had just written her final exams and they have her degree ready for her. if you'd like to help the surviving bomb victims, 50 of whom are still in the hospital, go to cnn.com/impact. and we certainly urge that you do take a look at that website. charging the boston marathon bombing suspect, the officials could file charges at any moment. in fact, that is what we're waiting on, but exactly what charges is this young man going to be facing? he is certainly in a great deal of trouble. murder, terrorism, conspiracy, all in play. we're going to break down the possible list and how it may compare to another very infamous

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just what exactly this suspect who is currently in serious condition in a boston hospital is going to be facing, when he's going to be actually charged, when he's going to make an appearance and how technically they're going to do that considering he's sedated and intubated. i've got some news here courtesy of our cnn jason kesz ler who says the suspect has made an initial appearance now in the hospital room. he did this in front of a federal magistrate judge. this comes courtesy of gary went said this is under seal probably no surprise given the magnitude of what this case is going to be. also want to let you know that with regard to the system, the actual -- this is not considered a formal arraignment. my very uneducated guess maybe this is considered a first appearance, but i want to bring in some of our guests on that because federal prosecutors could also be filing the charges any time later today against this bombing suspect, dzhokhar tsarnaev. officials haven't publicly said

what those charges are going to be. but since his capture friday tsarnaev has been on a ventilator, heavily sedated and restrained in a hospital bed. and we do know investigators have been questioning him from time to time at that hospital bed every several hours in fact. he's not able to speak, but he is responding by moving his head we're told. a source with firsthand knowledge of the investigation says that the questions have focused on whether there are any other bombs, any other danger, whether anyone is helping him, other co-conspirators and of course how his brother was killed and who his brother may have been involved with as well. joining me senior legal analyst jeffrey toobin and professor dershowitz. professor, can you let me know what you make of the initial appearance in the hospital room? >> if it's true it poses a very serious problem. if you have a judge appearing in the hospital room, he must advise the defendant that he has the right to have a lawyer. and a lawyer should be there at

that initial appearance. certainly this is the commencement of a criminal charge whether they call it an arraignment or initial appearance, that's just extreme formalism. the case has now begun, he's entitled to have a lawyer, the judge must advise him that he has the right to a lawyer even if the fbi didn't do so. so if you're beginning to bring judicial officials into this and they're circumventing the constitution, we're now creating a real problem that goes well beyond any miranda issue. >> and, professor, the issue of competency, you cannot have a defendant anywhere who is not competent, can't understand the charges against him, can't assist in his own defense, if you are sedated even on a sedation holiday, can you see any circumstance where that could be considered competency? >> absolutely not. and that's why he needs to have a lawyer present. the idea that a lawyer is not

there when a judge is talking to him and that the judge is -- if it's happening, is playing this game with the prosecutors of appearing, not warning him of his right to have council, this raises serious problems. this escalates the issue beyond government officials, beyond police officials or fbi officials trying to deny him his rights, to the judiciary denying him his rights if in fact the magistrate didn't warn him of his right to council and didn't really wait until a lawyer was there. the public defender's ready to come into this case. they're 15 minutes away from the hospital. there's no reason why if it's true, now we don't know the facts, a lawyer was not present with him when that magistrate appeared in his hospital room. >> well, let's hope there was one. and for anybody who thinks he doesn't need a lawyer and why should we protect this man's rights? we want to protect a successful prosecution. you don't want anyone getting off on technicalities.

jeffrey toobin, if you could just sort of think ahead for a moment of all of the different potential charges on a federal level, notwithstanding the murder charges on a state level, but a federal level because there is no federal murder statute for run-of-the-mill civilians like me, what is the likelihood of the list of charges this suspect could face? >> well, the likely charge is terrorism. there is a federal terrorism law. and the use of explosive devices in the course of terrorism is not only a federal crime, it is a federal crime that potentially carries the death penalty. >> when you say that, is there not also -- forgive me for not knowing the wording of the federal statute, but exploding a device in a public place causing death is also something that carries the death penalty. >> that's right. >> so video perhaps -- >> that's right. >> okay. >> remember, we are such an early stage of this process. you know, we are all taking it as a given that the fbi and

other law enforcement have identified the two brothers as the people who set off the bomb. we don't know what the evidence is of that. we haven't seen evidence -- we haven't seen them setting off the bomb. we haven't seen them admitting it. now, supposedly one or both of them admitted it to the carja carjacking victim, but i think we just need to slow down a little bit and say, you know, what is the proof here. >> sure. >> i assume the government wouldn't bring this case if they didn't have proof, but we haven't seen it. >> i'm glad you brought that up, jeff. a little later in the program we're actually going to talk about the evidence currently as we know it and what other potential evidence they would need to make that link because you have to be very specific. again, these are not simple murder charges. and just quickly, alan, if you could briefly the issue of timothy mcveigh, he faced weapons of mass destruction causing death, exploding weapons in a public place but also eight

first-degree murder charges for the federal officers. we don't have federal officers killed here, so that's a bit of a difference. >> and there was no federal building targeted. and in order to bring it within the federal terrorism statute, you have to show an intent under the statute, an intent to intimidate and intent to coerce. it seems likely that they'll be able to show that, but there probably would be help by an interrogation. that's the problem. if they get that evidence through an interrogation that was either involuntary or not mirandized, they may not be able to use that information at the trial. so they'll have to infer intent from the act itself, which you can do but places a somewhat heavier burden on the prosecution. >> we'll talk about some of this evidence in a moment. again, jeffrey toobin, alan dershowitz, invaluable information. we look forward to what we're going to do about this in seeking justice for this town and america. we talked about the possible charges, what about the defense? if you were one of the public defenders likely to get this

case slamming on your desk, what are the kinds of things you could bring up? what about his brother, tamerlan, and the radicalization? is it possible this could be a major defense for the younger brother? will there be finger pointing towards the dead brother? and will it be effective? could it be effective? we'll take a look at that in just a moment. everyone's retirement dream is different; how we get there is not. we're americans. we work. we plan. ameriprise advisors can help you like they've helped millions of others. to help you retire your way, with confidence. ♪ that's what ameriprise financial does. that's what they can do with you. let's get to work. ameriprise financial. more within reach. it's lots of things.

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there are still so many unanswered questions in the boston bombing. and among them the exact relationship between the tsarnaev brothers. they certainly seemed very different. in recent years we're told that the older brother, tamerlan, had become increasingly radicalized after a trip to russia. we're also learning that he had become combative in his own mosque during prayers, even got shouted down after an outburst during a sermon in the mosque. he was upset apparently over the speaker's comparison of the

prophet mohamed to martin luther king jr. but friends say the younger brother, dzhokhar, wasn't anything like that. in fact, he did go to prayers not as often but only with his brother. here's how their uncle describes them. >> dzhokhar has been used by his older brother. he used him as his -- not even accomplice, some kind of instrument. and i say even if i were among spectators, he would not stop doing that. >> joining me now is an associate professor at the university of north carolina school of law. and also and perhaps more pointedly for the purposes of this conversation, she defended the shoe bomber, the so-called shoe bomber richard reed. i'm so glad to be able to speak with you today about this because obviously this had to be first and foremost on your mind what would the defense of this suspect be keeping in mind, tamara, we don't have any of the

evidence listed, we don't even have charges at this point. but i'm curious to know if you would think right away that this now-dead alleged co-conspirator older brother might factor heavily into a defense of dzhokhar tsarnaev. >> yes, he very well could factor in terms of a defense of duress, in terms of a defense of knowledge. it's not clear at all at this point whether dzhokhar knew the ramifications of what he was doi doing, or knew what if anything was in the backpack that he was carrying. we don't know what his brother told him. we don't know what he agreed to. we don't know if he felt under pressure or threat from his brother or from others. all of these are open questions that will need to be explored.

>> and, tamar, this is one of the issues i wondered right away. when the statements were made that there's evidence of video of dzhokhar dropping a backpack and walking away callously, that is a very, very specific piece of evidence if in fact it's true. would that be the argument that a defense attorney perhaps someone like you would think of right away, does he even know what's in that backpack given the kind of person we now know his alleged co-conspirator to have been? >> absolutely. you know, knowledge, as i said, will be a key element here. and it will be something that the u.s. government is going to have to prove beyond a reasonable doubt that dzhokhar knew what he was doing, that he understood what he was doing and that he had the intent to carry through very specifically with

these acts. and just because there happens to be video of him putting down a backpack, at this point i don't think it's even clear that that specific backpack can be conclusively connected to the explosions. >> we don't know that. all we know is what the governor deval patrick said. he indicated that there's a clear image of him dropping a backpack, casually walking away and though to his knowledge he hasn't seen the video but briefed on it, that backpack exploding. you are absolutely on the money when you talk about beyond a reasonable doubt. that's what juries want especially if there's a death penalty that comes attached to these sorts of things. tamar, thank you for your expertise on this as we look forward to what exactly this suspect's going to be charged with and how he will be defended. someone is going to do that. explosions and explosive materials, guns, all of these things possible evidence not to

mention potential hard drives, evidence in the boston marathon bombings. our legal team is going to dig into it what it means and what it could lead to all coming up.

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and certainly the -- is underway. seems so widespread and so massive and the crime scene is still being examined. just a couple of examples though before we even have the official list, they allegedly told or at least one of them allegedly told an owner of an suv that they, again allegedly hijacked, that they were the ones who allegedly carried oult the boston bombings. the boston police commissioner says he believes the brothers were planning more attacks, he says that based on the evidence found at the scene. explosive ord innocents and guns and explosive devices. also the older brother tamerlan tsarnaev was killed in a gun battle with police in which 200 shots were fired. police say tamerlan was also wearing an explosive device on his body. tamerlan tsarnaev, the dead

older brother also created a youtube channel with links to videos under a category that was labeled terrorists. all of this official and technical evidence that can be used against them. joining us for more on the defense of this now-suspect who's in the hospital room is defense attorney danny savolis. i want you to listen both on what governor deval patrick said about "meet the press" about the specific video i brought up last segment with the defense attorney about what the video shows the younger brother who was seen carrying a backpack and putting it down. again, this is the younger of the two brothers who is alive and in the hospital bed. and specifically what the governor said he has heard about with regard to video. have a listen.

>> it does seem to be pretty clear that this suspect took the backpack off, put it down, did not react when the first explosion went off. and then moved away from the backpack in time for the second explosion. so pretty clear about his involvement and pretty chilling frankly. >> so i want to be very clear again that the governor has not seen -- he says he hasn't seen the video himself but that he was briefed about the contents of the video. obviously this will become critical evidence. danny, i want you to weigh in on this also as a defense attorney. you heard what richard reed's attorney said about that video. while it may seem very damning, it could also prove to be ratherin ok would you srather

in rather in ok would you s ssay -- innocuo innocuous. >> the defense is going to be he did. they're both going to point at each other. in this case he has a better defense, better being a relative term by saying, hey, the dead guy, he did everything. i was an unwitting victim and there's nobody around to say otherwise. that i predict will be one of their main avenues in this defense of an otherwise very difficult case for the defense. >> and, tom fuentes, the crime scene and then subsequent crime scenes because there was this extraordinary exchange of ordinents and gunshots the night before this suspect wusz taken into kcustody and the apartment where it's been reported a number of explosive devices were found, i would like to ask you as a former fbi officer would know about the kind of interrogation going on right now

at the bedside of this suspect, specifically this high value detainee interrogation group comprised of cia, fbi and others. >> well, they're trying to dperm if determine if there are any other explosives out there or any other conspirators. to the extent he's able to communicate, we just don't know. again, we also don't know positively that he was or was not given miranda. if he was given miranda, the defense attorney is going to say later he was under sedation taking narcotic drugs, so he's unable to make a knowing waiver of miranda rights. secondly, he's got tubes and wires and beepers and monitors all over his body. he could say that constitutes duress. and i knew if i didn't cooperate they would disconnect that and let me die. whether he gets miranda or doesn't, that's kind of a ridiculous point at this point. >> i got to break in. tom, let me break in for a moment. i've got breaking news.

attorney general eric holder now announced at least what one of the charges against dzhokhar r tsarna tsarnaev, 19 years old and u.s. citizen of cambridge is going to be charged with at this point, he's been charged with using a weapon of mass destruction against persons and property at the boston marathon resulting in the death of three people and injures to more than 200 people. let me just continue to read as i'm getting this breaking news. in a criminal complaint released today in the district of massachusetts tsarnaev is specifically charged with one count of using and conspireing to use a weapon of mass destruction, namely an improvie i vised explosive device or ied against persons or property within the united states resulting in death. and one count of malicious destruction of property by means of an explosive device resulting in death. the statutory authorizes penalty upon conviction of death or imprisonment for life or any term of years. tsarnaev has had his initial court appearance today from his hospital room.

critical that we just heard the attorney general who was the person who was going to have to make the call as to whether the feds were going to seek the death penalty, it appears rather clearly, danny, weigh-in on this, that's the call. he will face the death penalty for at least those explosives and weapons of mass destruction charges, correct? >> yes. and that was the predicted charge. that weapons of mass destruction, that will qualify him for the needle, the death penalty. and that is an expected charge. and there will be a number of charges underneath that lesser included or lesser charges, but that charge will qualify for the death penalty. and a lot of people are saying, well, massachusetts they don't have the death penalty, that doesn't really matter. that's the state legislature. but the federal death penalty could potentially apply anywhere and everywhere. and in this case -- believe me, a big issue in this case is every moment that we're in right now. the language, the words that he's saying or not saying may end up saving his life or not because that could later on be a

bartering chip for the death penalty coming off the table. if he has more information that the feds are interested in, if he gives everything up at this stage, he is now has a very weak negotiating hand. so these days and hours here whether he's speaking or not will ultimately be critical not in the case against him because that's probably a win for the government, but in his ability to negotiate whether he lives or gets the needle. >> i want to bring in professor dershowitz, alan dershowitz, and also our senior legal analyst jeffrey toobin as well. i want to repeat for those who may be tuning in, the u.s. attorney general eric holder has now announced that dzhokhar tsarnaev, 19 years old, a u.s. citizen from cambridge is charged with using a weapon of mass destruction against persons and property at the boston marathon. and he is also being charged with one count of using and conspireing to use a weapon of mass destruction namely an

improvised explosive device or ied against persons and property within the united states resulting in death. also one count of malicious destruction of property by m of an explosive device resulting in death. those statutory authorize death or possible imprisonment for life or term of years. those sound similar to the charges timothy mcveigh was charged for. in the 11 charges, use of mass destruction, conspiracy to use mass destruction, destruction with the use of explosives and eight first-degree murder charges for those federal officers. i am assuming you are not surprised by what eric holder has decided to do. >> no. i'm actually reading the affidavit right now. i have it here in front of me. and it's a very specific affidavit by the fbi lead agent that specifies all the evidence

against this defendant that he placed the knapsack down, that it blew up. and in terms of the elements of the crime, the specific factual elements of the crime, they seem to have an overwhelmingly compelling case. where i think the problem may come up is in how you infer intent to violate the terms of the statute from this. and i think they probably won't have a difficult time based on what i've just read in the affidavit they seem to have a pretty, pretty ironclad case. so my prediction is this case is not going to go down like an ordinary criminal trial where the defendant says i didn't do it and the prosecution has to prove it beyond a reasonable doubt. there will either be a plea bargain in which he will exchange information about possible terrorist cells or training to save his life, or he'll want to be a martyr and he'll admit and indeed boast the fact he did it and try to justify his actions under kind of extremist jihadist

principles. i don't think we'll know the answer to that question until a lawyer meets with him in private and he tells the lawyer what his intention is and the lawyer warns him of the consequences and advises him perhaps to make a plea bargain. that's the way this case is going to go down. it's not going to be a conventional whodunit trial. >> effectively what you just said is what timothy mcveigh diseas decided to do. he waived his rights. he chose not to continue his appeals and be executed earlier than he would have been otherwise. i think by my count 17, 18 years ago. now, jeffrey toobin, i want to bring you in on that issue of a potential plea deal, but not before i just read a little bit more of eric holder's statement. and that is -- yeah, go ahead. >> i just want to make clear something i think we could have left a misleading impression what we've been saying for the last half hour.

the government has not decided to seek the death penalty here. the crime here is potentially one where the government could seek the death penalty, but there is a formal review process that goes on in the department of justice where eric holder ultimately makes the judgment about whether they are going to seek to execute this guy. this is not the decision that's been made yet. this is still a very early part of the process. the case hasn't even been presented to a grand jury yet. so the government has not decided to seek the death penalty. it may well. that may happen, but this complaint does not represent that decision. >> the wording -- go ahead. >> i just want to make clear this complaint does not mean the government has made up its mind on the death penalty. >> you're absolutely right. >> okay. and then i wanted to just continue with some of eric

holder's statement. thanks to the valor of state and local police and dedication of federal law enforcement and intelligence officials and the vigilance of members of the public we've once again shown though who target innocent americans and those attempts at terrorizing our cities will not escape justice. we will hold those ponl i responsible for this heinous act accountable to the fullest extent of the law. so to the same question of death penalty and alan dershowitz, i would like you to weigh-in. is it not an extraordinarily valuable bargaining chip whether you have the -- whether you want to actually carry it out or not, just to attach the death penalty to charges in a prosecution, doesn't it carry an enormous amount of weight if you do want to seek any kind of plea deal or get information about co-conspirators? >> well, it depends on the defendant's views. if he sees himself as a martyr, if he sees himself as someone who wants to die, there were some reporting earlier on that he wrote a note in the boat

saying that his brother's with allah and he should be with allah, if penalty may prove the opposite. it may serve as a disincentive to cooperating. he may say i want to get the death penalty, i want to be a martyr, i want to be somebody who others can look up to and emulate and the death penalty may back fire in a case like this. >> and jeffrey toobin, regardless of what anyone's morale, you know, morality is regarding the death penalty, is this not, if the united states, the various different states that do actually use the death penalty, is this not the kind of crime that the death penalty exists for? >> well, that is certainly an argument that prosecutors always make to the jury in a case like this. if not for this, when do we have the death penalty? indiscriminate murder, murder of

a child, murder of, you know, in a completely random and completely random way, solely for the desire to, you know, there was no financial motive here, this was simply a desire to kill, you can sort of start -- do the summation in your head for how it might work before a jury, but, again, i think it is really worth remembering it is still a very early in the process, there is a lot we don't know about the relationship between the two brothers, about how this crime was planned, how it went down, what the -- what the varying culpability of the dead brother and live brother are, just a lot we don't know at this point. >> and, alan dershowitz, i think i recall reading something you said, i believe in "the new york times" this weekend about any jury who would look at a video of a suspect putting an explosive device in front of an 8-yer-old boy, a bomb loaded

with shrapnel and nails, and allowing it to explode, that that is an extraordinarily powerful piece of evidence. and, again, it goes to the same question, isn't this the kind of crime that the death penalty was actually offered for? but at the same time, would you expect eric holder to do anything less than actually seek the death penalty, given the outrage in the state, the town and the country? >> i would not. what he has going for him, though, is he's young, he's 19, he has a kind of angelic face, and americans love people with angelic faces, whether it is amanda knox or this young man, i don't want to make a comparison between them, but we somehow have this approach that if you're pretty and angelic, you probably didn't do it, or you didn't do it with an intention or maybe your brother made you do it or maybe you deserve some mercy, i think people should put that aside. how people look has no relationship to their culpability, and they will focus on the videotape of him putting

that bag down near an 8-year-old child, knowing full well what was in that bag. one of your previous commentators said the defense might argue he didn't know what was in that bag, total nonsense. he went back to his school the day later, partied, at that point he knew what was in the bag. there will be no difficulty proving that he intended to kill as many people as possible, he knew what was in the bag, and the jury will take that into account. so i think if you had to predict the outcome, i would predict the death penalty unless he has a lot of good information about his brother's contacts and other people and that can be traded for his life. >> all right, i just want to draw attention to the pictures on the right-hand side of your screen. this is a live picture, i believe it is of the copley square where the investigators are continuing to process the crime scene, where those explosions went off. we have been told that there is a plan for reopening this area downtown boston as quickly as

possible, hopefully within just a couple of days. but it is a massive, massive crime scene. and this is a specific, very specific kind of case. they do not want to leave any kind of stone unturned. their sorting through some of the garbage bags, if i can look closer at the monitor, sorting through the garbage bags and public garbage cans in that area. those explosions blew some of the debris up into second and third story windows as well. and they have been picking pieces of evidence out of every nook and cranny they can. so it is a painstaking process. you can see some of it live playing out on your screen. but they did say that they would like to try to wrap this up, you know in just a couple of days and try to reopen copley square and the surrounding area. coming up next, the fbi also now under the microscope. what did the fbi know about tamerlan tsarnaev and should they have known that he was capable of an attack like this, given the warning they got and the questions they asked. we'll take a closer look at

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justice correspondent joe johns. what have you learned about how dzhokhar tsarnaev has responded to hearing these charges? >> this is pretty interesting stuff, ashleigh. these are the clerk's notes from the proceeding held before the magistrate. we now know her name is mary ann bowler. an initial appearance in federal court, according to this, when the defendant was advised of his charges, the defendant declined to answer bail questions, he ascented to a probable cause hearing which is supposed to occur on may 30th of this year, and it also says, interestingly, the court is satisfied that the defendant is alert and able to respond to the charges. so that would suggest to us that this defendant actually understands what's going on here, and we do know that he has been communicating with authorities who have been asking simple questions. so that adds to the knowledge a little bit, ashleigh, of what is

going on in that hospital room. >> but, joe, still that critical question, has he ascented to the miranda rights, has he retained counse counsel at this point? do we know any of that? >> we don't know any of that. but when you appear before the magistrate, usually you are advised of your rights, that's part of any criminal proceeding. so highly likely that he was at that point. >> all right. okay. joe johns, thank you very much. we're out of time, thanks for joining us here. brooke baldwin and jake tapper coming up next. to more efficient pick-ups. ♪ wireless is limitless. ♪ from tracking the bus.